Monday, 24 October 2011

I want to apologise to the readers of my blog, as my blogging this year has been at a trickle. This is because I have been overwhelmed and amazed at the extraordinary demand for my presentations this year about surrogacy. For more- click here.

In two days I head to the US to speak, yet again, about surrogacy, this time to the world's first international surrogacy conference in Vegas.

After that, I am off to Phoenix, where I am privileged that I have been invited by "one of the five most inspiring women in America", Professor Sarah Buel, to lecture her students at the Sandra Day O'ConnorCollege of Law at Arizona State University about domestic violence. Professor Buel is an inspiration to me. I like her clear headed vision about domestic violence. She is a strong advocate for the law taking clear, precise and effective steps to help end domestic violence, which in the US, like Australia, is all too frequent.

It seems funny that of all the law schools in America, the one I'll be speaking at was named after Sanda Day O'Connor, former US Supreme Court judge, whom I heard speak when I attended a lecture she gave at my alma mater QUT some years back.

A survivor of violence, Professor Buel is able to inspire amazing and extraordinary efforts by her students as to new ways of thinking about how to tackle domestic violence. Professor Buel is a renowned expert on domestic violence law.

Saturday, 17 September 2011

Friday, 16 September 2011

It's not too late! I fly out to Nepal tomorrow, but the vital work of Australia's CEO Challenge in helping women and children survive the horrors of domestic violence goes on. Please donate! Every dollar counts. http://ow.ly/6w35t

Ambassador of the Year Mick Doleman spoke passionately about the toll of domestic violence.

Me with other finalists.

Mick Doleman, deputy secretary of the Maritime Union of Australia, has been awarded White Ribbon ambassador of the year by the White Ribbon Foundation. A White Ribbon ambassador is a man who spreads the message opposing violence by men against women. The award was handed to Mick by the head of the Foundation, Andrew O'Keefe. As well as being the host of Deal or No deal, Andrew is opposed to violence against women and volunteers many hours of his time with the Foundation.

I was also honoured to be one of the finalists.

Last year's Ambassador of the Year, Nick Mazzarella had this to say about each of the finalists:

The Selection Committee had a difficult time in choosing from amongst these inspiring finalists, as each of them stood out in a number of ways.

 Finalist Peter Daglish - the Capital Works Officer at Maribyrnong City Council - never shy’s away from sharing his message of non-violence and respect for women. Whether at home, at work, or umpiring a local football game, Peter is a role model in his community. Peter even has a t-shirt that reads “Real men in Maribyrnong say NO to violence against women.”

 Brian Sullivan, Master of the Counselling Program for the School of Social Work and Human Services at the University of Queensland may not wear a t-shirt, but he holds respect, justice and dignity as his core values. This alignment of principles with White Ribbon allows him to wear his Ambassador pin proudly when giving speeches to students, executives, or community members.

 Assistant Commissioner Mark Murdoch is the Corporate Spokesperson and Sponsor for Domestic and Family Violence across New South Wales with the NSW Police Force. Mark’s leadership has pushed the Police Force to be proactive, and he has gone beyond his job description in ensuring that Senior Police and the NSW Police Force more generally understand the importance of the role the police play in prevention now, and into the future.
 Also playing a pivotal role in raising awareness is Phil Cooper, the Community Development Officer for the Victorian Aboriginal Community Services Association. Phil has done fantastic work recruiting and training new Ambassadors in the Aboriginal community. Most recently, he recruited his “Fitzroy Allstars Football Team” to be Ambassadors, and he has provided the players with training to become spokespeople on the subject of ending violence against women.

 Also engaging local sport teams is Kevin Maher, the Industrial Relations Advisor for Abigroup Contractors. Also the President of the Macquarie Scorpions rugby team, Kevin enlisted his team to help shift cultural norms and change attitudes about violence against women. The team is working to end violence through their new initiative “Let’s Tackle Domestic Violence.”

 In addition to reaching youth through sport, White Ribbon Ambassadors are also reaching youth through the school system. None have been more instrumental in doing this than Sydney Regional Director of Education, finalist Dr Phil Lambert. Phil’s work has been critical in developing and successful implementing the White Ribbon Principal’s ‘Breaking the Silence’ Program. The program brings the message of anti-violence to students and teachers and provides them with a forum in which these sensitive issues can be discussed. Phil’s leadership has been instrumental in the incredible success it has had to date, and has established a strong foundation from which it can grow.

 At the heart of all of these types of endeavours, are Ambassadors who are engaged in their roles and are enthusiastic – showing initiative in their involvement - like Reece Harley. The National Policy Director at Left Right Think Tank, Reece uses his personal and professional networks to spread the White Ribbon Message. At one point or another, every member of the White Ribbon staff has contacted Reece for his invaluable assistance. Whether looking for his opinions, helping to organise an event in Perth, raising funds, or getting acquainted with new Ambassadors from WA, Reece is always keen to help and he never shies away from the issues.

 John Whop, the Co-ordinator for the Waibe Thursday Island Men's Shed is also an Ambassador committed to doing what he can and is always looking for ways to be more engaged. Living on the remote Island, John will share his passion for non-violence with tourists and visitors who pass through as well as the
locals. He also travels to Darwin, Batchelor, Cairnes and Brisbane along with 14 nearby rural communities to promote the Campaign and ask people to support the prevention of violence against women.

 Giving talks on behalf of White Ribbon is old hat for Ambassador Joseph Masika, Chairperson of the African Communities Council for South Australia. His consistent support to the campaign and to other campaigners has been evident with his delivery of educational workshops (in his free time no less) on ending silence on domestic violence in African communities. His advocacy is a large part of why women in the emerging communities he works with are gaining more equality and higher-level positions.

 Finalist Stephen Page, Partner at the Harrington Law Practice, is also a powerful advocate for the Campaign. Whether he is amending state laws, lobbying the national government, writing legislative reviews on behalf of White Ribbon, or providing the Queensland White Ribbon Working Group with advice and direction, Stephen is constantly striving to improve conditions and advocate for positive change.

 Mick Doleman, Deputy National Secretary for the Maritime Union of Australia also believes that advocacy is a key to Campaign’s success. As a result of his efforts, all male MUA officials, officers and many members have taken the Oath or become Ambassadors themselves.

In a recent case, Wainder and Wainder a trial judge ordered that the parties share the care of the their son on an equal basis after he turned 5. The only snag was that by then he would be going to school, with the mother living on Sydney's north shore, and the father living in the western suburbs. Not surprisingly, the mother appealed, and was successful:

It
may be implicit in his Honour’s order that the child spend equal time with
her parents in 2012, that he was satisfied that
that arrangement was reasonably
practicable within the construct of s 65DAA(5). However the trial
Judge’s comments ... appear to us to be an acknowledgement that the
proposed order to come into force
in 2012 may not be reasonably practicable if
the parties were living in their present locations.

The
order impugned is open ended and would, without further litigation, extend
throughout the child’s school life. Where the
court proposes to make
orders stretching into the future, the consideration of whether a proposed order
is reasonably practicable
should focus on the date of enlivenment of the order.
The trial Judge is required to make a prediction at the date of trial on the
evidence then before him or her as to whether at the date on which the order
takes effect, it will be practicable or “feasible”.

Although
his Honour paid careful attention to the matters in s 60CC and thereby
determined that the proposed order for equal time was in the child’s best
interests, he did not proceed to determine
whether, on the evidence available to
him, the order for equal time would be reasonably practicable once the child
started school,
and in this respect, fell into error.

It was surprising to be reminded that court processes are based on evidence and not personal opinions. This reminder came in a recent case, Herridge and Henderson. The trial judge's views seemed to outweigh the evidence both as to ADHD and family violence. The trial judge's victim blaming was rejected, at least for a lack of reasons. The mother's appeal was successful.

ADHD

In that case an expert, Dr B gave evidence that the son the subject of the court proceedings had some degree of ADHD. His evidence was unchallenged- at least in court.

When judgment was delivered, the judge was skeptical about this evidence, because of an editorial from the Sydney Morning Herald:

I
am not in a position to say whether there is any substance in this claim [ as to ADHD]. I do
know that the diagnosis of ADHD and the use of Ritalin
and the like to treat so
called sufferers is still controversial with some authoritative opinion to the
effect that it is over diagnosed,
or does not exist and is sometimes
“used as a crutch” by medical professionals loath to tell
parents that their child is “ill-disciplined”, and that
Ritalin is over prescribed and used “as a crutch by parents and/or
teachers in response to children whose real need is better parenting or
teaching” (Sydney Morning Herald, Editorial p12 (25.01.2011))

The Full Court of the Family Court was critical of the use of the editorial, both because none of the parties had been accorded procedural fairness as to its intended use, and because it was not evidence from an expert:

It
is not in doubt that, until the delivery of judgment, none of the parties to the
proceedings before him had any indication that
the trial Judge was going to rely
upon the material to which he referred in his reasons for judgment.

To
the extent that the newspaper editorial was regarded by the trial Judge as
evidence, no party had the opportunity to test it. No
party had any opportunity
to make submissions about the material, whatever its potential status may have
been. Quite apart from the
trial Judge’s failure to afford the parties
natural justice, the statements from the Sydney Morning Herald reiterated by the
trial Judge do not appear to be those of a person who was qualified to make or
express such opinions and would not have been admissible.

Sensibly,
Counsel opposing the mother’s appeal acknowledged that, as a matter of
natural justice, the trial Judge had erred
by referring to the material from the
Sydney Morning Herald. Necessarily, it was submitted on behalf of the parties
opposing the
mother’s appeal that, although referring to it, the trial
Judge could not be said to have relied in any discernable way on
the statements
in the Sydney Morning Herald editorial....

(W)e are persuaded that the trial Judge did rely upon what he
apparently read in the Sydney
Morning Herald editorial in concluding as he did
with respect to the child B’s likely future use of Ritalin. To read the
three
paragraphs is instructive, and supportive of our conclusion.

The
trial Judge referred to the children’s behavioural problems, and observed
that Dr R “seems to accept that [the child
B] has a degree of ADHD”.
His Honour recorded, accurately, that the father and his “side of the
family” questioned
the diagnosis of ADHD for the child B and suggested
that “reliance on Ritalin is a substitute for ill-discipline in the
mother’s
household”. As was conceded before us, Dr R did accept that
the child B exhibited ADHD “to some degree”. No party
at trial
challenged Dr R’s expert opinion evidence in that regard.

In
a passage which was understandably relied upon significantly by Counsel
resisting the mother’s appeal, the trial Judge said
the he was “not
in a position to say whether there is any substance in this claim”, i.e.
the claim of the father and
his family. How his Honour came to “know that
the diagnosis of ADHD and the use of Ritalin and the like to treat so called
sufferers (emphasis added) is still controversial with some authoritative
opinion to the effect that it is over diagnosed” was not revealed
by him
in his reasons, or anywhere during the trial to which we have been referred. Nor
was the basis upon which his Honour observed
that the “authoritative
opinion” to which he alluded also suggested that ADHD “does not
exist”.

In
circumstances where there was unchallenged admissible expert opinion evidence
that the child B exhibited a “degree of ADHD”,
it was not open to
the trial Judge, without reference to admissible evidence which was before him,
to speculate as to whether or
not ADHD existed or was exhibited by the child B.
His Honour’s personal opinions, whatever their basis, were no substitute
for evidence.

Ultimately,
it is apparent from the balance of the paragraph that the trial Judge accepted
what an unidentified, and presumably unqualified
editor of a newspaper
apparently said about ADHD. It is readily apparent that, notwithstanding that Dr
R had not expressed the cynicism
so colourfully articulated by the newspaper
editor, the trial Judge preferred the opinion of the latter.

Our
conclusion that the trial Judge’s opinions in relation to ADHD and Ritalin
were influenced by the Sydney Morning Herald
editorial is reinforced by the
first sentence of the paragraph immediately following the reference to the
editorial. His Honour there
said that if the child B resides with the mother
“and she retains a say in his medical treatment he may revert to
dependence on Ritalin” (emphasis added). Notwithstanding that there
was no evidence that the child B had ever been dependent upon Ritalin,
inappropriately prescribed it, or that the mother had ever inappropriately had
the child take Ritalin, the trial Judge clearly, and
in the face of Dr R’s
evidence, which was uncritical of the mother in relation to Ritalin, regarded
the child B taking Ritalin
in the future as undesirable, and reflecting
adversely upon the mother.

It
is difficult to see how, by reference to the trial Judge’s own reasons,
such a view could not have been reliant upon, or
influenced by the newspaper
editorial from which he quoted. If it was not, in the circumstances it could
only, and impermissibly,
have been based upon his Honour’s own views about
those matters.

Family Violence

The Full Court stated, quoting the trial judge:

It
is my assessment, after reading all the relevant police material in evidence,
the affidavit evidence and seeing and hearing both
the mother and father giving
oral evidence, that the mother is not, and has never been, fearful of the father
but that she has abused
the system in place to protect people who are in genuine
fear, and have a proper reason to be fearful, for the purpose of getting
her own
way and gaining a tactical advantage in these proceedings. To do so she must
have manipulated [the child B] and [the child
H] so they would be fearful of
their father, not for any benefit to them. Such manipulated fear in the boys is
the only explanation
for the preschool teacher’s complaint, although it
was no doubt made because of information the mother supplied and because
of her
urging. It is not, in my opinion, a coincidence that Senior Constable [P]
reached much the same conclusion as I have about
the motives, bona fides, and
attributes of the mother. I regard her as attempting to use the Court in the
same way as she attempted
with more success to use the police and Local Court.

Later
in his reasons, the trial Judge referred to an episode on 4 January 2010, and
said:

One
4 January 2010, the father attended ... Police Station in response to a police
request. He was charged with two counts of breaching
the AVO, which was in place
at the relevant time. The charges were based on the text messages of 5 and 11
December. He was initially
refused bail, and spent from 4 January to 27 January
at ... jail. It is a testament of the ridiculousness of the situation that,
on
27 January, the father admitted what it was alleged he said and was convicted.
It does not reflect well on the legal system and
those who refused bail, that
the Magistrate sentenced the father to 14 days imprisonment after he had
already spent more than that
on remand. He was immediately released. The father,
his mother, the police, and the Magistrate who refused bail and could not have
seriously considered the circumstances, further empowered the mother. That this
is the case is shown by what next occurred.

On
15 February 2010, the father went to [the child B]’s school. He had, in
May 2009, after I had allowed him to collect the
children from school and return
them to it, met the Headmistress, [Ms M], to inform her of the situation. He had
requested copies
of [the child B]’s school reports, including that for the
end of 2009. He collected this on 15 February 2010. Either [the
Headmistress],
who in many ways has demonstrated that she is quite prejudiced
against the father in favour of the mother, contacted the police or,
as is more
likely, contacted the mother, who had already told her not to deliver reports to
the paternal grandparents. The mother
or [the Headmistress] contacted the police
and claimed that the father had breached the AVO, which he had because of its
ludicrous
terms. One of these was that the father was not to approach the
children’s school. The police charged the father on 22 February,
but
he was granted bail. He had, between 18 February when the police first contacted
him about the matter and 22 February made an
application to discharge or modify
the AVO.

When
the matters were due to be heard on 5 May 2010, the mother refused to attend but
wanted the orders to continue unchanged. The
charge of breach was withdrawn and
dismissed and the term of the AVO was reduced from five years to one further
year concluding on
5 May 2011. The children were also removed from the
“protection” of the AVO and the condition about approaching their
school was deleted, as it should have been in view of my still effective orders.
The terms affecting the children and school should
not have been there in the
first place.

Later
again, the trial Judge recorded:

...
On any view, the facts up to that time [November 2007] establish that the father
could not limit his alcohol consumption to acceptable
levels and was very prone
to lack of self-control and angry outbursts. These resulted, in Ms [T’s]
[the Family Consultant’s]
understanding, in damage to property, an assault
on police, pub brawling and similar, as well as disparaging language directed at
the mother; sometimes in the presence or hearing of the children, but not in
assaults on the mother or children.

His
Honour also later recorded:

The
father was no more candid with Dr. [R] than the mother. He said he was
“now” drinking only one or two alcoholic drinks
each week, and had
no current alcohol problems. Ludicrously, he said he had been a heavy drinker,
drinking up to five beers per day.
Surely, to get as drunk as he often was, he
was drinking much more than that, and would be likely to believe that to drink
five beers
a day would be very modest consumption. He attributed the breakdown
of his relationship with the mother in part to her objection
to his alcohol
consumption. This is probably true. The paternal grandmother understated the
father’s alcohol problem to Dr.
[R] and excused it by blaming the
mother.

At
trial,Counsel for the ICL submitted the following in relation to the
issue of violence:

It is submitted that the Court would be persuaded
that there is substance to the mother’s complaints about breach
AVO’s,
given the number of convictions and the sheer number of messages,
coupled with the father’s admission to the police that he
recognised that
he had breached the orders on a number of occasions. The Court would also accept
that her concerns that the children
or either of them had been sexually
interfered with were genuinely held, and based on the unchallenged evidence of
[Dr B] it is clear
that [the child B] made some disclosures even though JIRT
held that the charges could not be substantiated, and that she was perhaps
encouraged in those beliefs by the responses she received from [Ms G], [Mr F]
and [Dr N]. ...

The
trial Judge’s ultimate conclusion with respect to family violence was:

The
mother’s allegations of family violence have already been chronicled and
rejected. There is still a family violence order
which, as recently as May 2010,
the father contested and had reduced in duration. In my assessment, it was
largely made without justification
and should not be permitted to inhibit what
would otherwise be appropriate parenting orders.

Earlier,
his Honour said:

There
are no significant practical difficulties and expenses which ought to arise
whether the boys live with the mother, the father,
or the paternal grandmother,
which will significantly affect the maintenance by the boys of their right to
have personal relations
with, and direct contact with, both parents and all the
relevant family members on a regular basis. The main source of such practical
difficulties to date has been the attitudes of the mother, those who support
her, those who have empowered her such as the Police
and Local Courts in
granting AVO’s to “protect” her and the children
unnecessarily, and the father’s weakness
of character which makes him
vulnerable to her manipulative and deceptive actions.

As
is readily apparent, notwithstanding that courts charged with hearing and
determining AVO proceedings had determined such proceedings
in the
mother’s favour, in criticising the mother in the way in which he did, the
trial Judge effectively criticised the person
who had been found by courts
dealing with such matters to have been the victim, and considered the father,
who had been found to
be the perpetrator of family violence, the victim.

Earlier
still, the trial Judge found the mother’s behaviour had been “so
serious and potentially damaging to the children”
as to raise the prospect
of the children only having supervised contact with her. His Honour had also
found that “[n]ow that
the parents live apart, there is virtually no
prospect of incidents of violence occurring between them”. His Honour
proceeded
to find that “any risk that [the father] would harm the children
either physically or psychologically as a result of abuse,
family violence or
neglect is such that the risk is so low as to be within acceptable
limits”. Those findings have not been
challenged in this appeal....

The
conclusions of the trial Judge with respect to the topic to some extent appear
to reflect his personal views in relation to the
operation of family violence
laws in this country, and of those who rely upon them, or support and assist
those who do. Similar views
found expression elsewhere in the
trial Judge’s reasons, such as the following paragraph:
126. [The
child B] had continued to see [Mr F], is a senior counsellor with the NSW Child
and Adolescent Mental Health Service, and [Ms
G], a biased clinical psychologist
at [E Organisation]. [Ms G] made a report that the children could not spend time
with the father
following an alleged relapse in his behavioural problems. [Ms G]
is so biased that, in a report she made on 23 September 2008, she
said
“[the child B] has disclosed sexual assault to a doctor.
Unfortunately[my emphasis][the child B] has not disclosed
to JIRT.” [The child B] was referred to [Dr N], no doubt because
the mother had approached [Mr F] or [Ms G].(emphasis added)
and

Further
support for our conclusion is gained from the following extract of the passage
which we have earlier set out in full:

...
It is typical of the mother’s case that she claims many acts of violence
against her by the father, but provides next to
no detail or specific evidence
of it. I regard the mother as being an exaggerator and habitual liar, and as
being exceptionally willing
and able to manipulate situations to her perceived
advantage, especially by using politically correct do-gooders and people who
have
a duty to deal with social problems and the like, but not the time,
inclination or ability to distinguish truth from fiction. I do
not completely
discount the allegations of violence. I think they have been greatly exaggerated
in number, extent and effect by the
mother and regard the limit of the
father’s violence toward the mother as likely to be drunken verbal abuse,
threats and occasional
damage to property.

The Full Court of the Family Court, in a case called A Bank and Coleiro recently rejected the approach of Federal Magistrate Harman on contempt, and how to deal with his bank. The bank appealed, successfully, against various orders made by Federal Magistrate Harman.

First appearance 7 April, 2011

The husband appeared without a lawyer, but with an interpreter. The husband had sold his home, for about $200,000, and in answering a question from the Federal Magistrate as to whether the money was still in the account of his solicitors, said "yes" through his interpreter.

There was a short break. On the matter coming back before the court, a duly lawyer appeared for the husband. It became apparent that the $200,000 had been deposited to an account of the husband's held with the bank. No bank statements were provided. The duty lawyer told the Federal Magistrate that the husband had trouble hearing, and dementia, and that she was concerned about whether or not the husband had capacity to instruct her.

The transcript speaks volumes as to what happened next:

Can I ask you,
Ms Interpreter, to explain. I want [the husband] to tell me where the
$200,050 is; and if he either
refuses to tell me or he genuinely no longer has
the money, he starts a gaol sentence today. THE INTERPRETER: Okay. [The husband] says that he fell sick. He put the
money in the back of the car and that when he looked for
that, they were no
longer there.
HIS HONOUR: Can you ask him is there any money left in any account with [the
bank]?
THE INTERPRETER: Okay. All I have left is about $3000.
HIS HONOUR: Then can you ask him is there somebody who can bring his
toiletries because he is going into a police cell in about five
minutes time?
THE INTERPRETER: Okay. Sir, [the husband] insists he doesn’t have any
money, okay? No, I don’t have anybody.
HIS HONOUR: Then can you please tell him he will be going to gaol until the
money is produced.
THE INTERPRETER: I don’t have any money. Somebody stole the money.
HIS HONOUR: Then can you please tell [the husband] he will be in gaol for a
very long time.
THE INTERPRETER: I don’t have any money.
HIS HONOUR: I am getting the police here now. They are going to take you into
custody and put you in a cell.
THE INTERPRETER: Okay. I can’t do anything about it.
HIS HONOUR: Very well. While we are waiting for them, you need to go to the
witness box, please...

HIS HONOUR: Now after you received th[e wife's property settlement] application, the sale of that house
at [D] finished, it was sold. Do you agree with that?
THE INTERPRETER: I had to sell it because I didn’t have any more money
to pay.
HIS HONOUR: But it was sold or the sale completed after 26 February. Do
you agree with that?
THE INTERPRETER: I sold the house before I received the papers.
HIS HONOUR: On 1 March, you deposited a sum of $200,050 with [the bank]. Do
you remember that?
THE INTERPRETER: Yes.
THE WITNESS: Yes.
HIS HONOUR: At around that time, you had opened three accounts with the [the
bank]?
THE INTERPRETER: Yes.
HIS HONOUR: And after those –that money was deposited to your account
on 1 March, you would appear to have withdrawn nearly
all of it.
THE INTERPRETER: Yes.
HIS HONOUR: A number of those withdrawals occurred by telephone banking.
THE INTERPRETER: No, it’s not through the telephone, no; I went to the
bank.
HIS HONOUR: So if your bank statements say that you had made withdrawals by
telephone banking, that’s not correct?
THE INTERPRETER: No, it’s not by telephone.
HIS HONOUR: Now a number of the transactions say “funds transferred to
term deposit.” Do you have a term deposit with
the [bank]?
THE INTERPRETER: No, I haven’t got an account, a term account.
HIS HONOUR: Then before we proceed any further, can I make very clear to you
what is occurring. If I could ask you to translate that,
please.
THE INTERPRETER: Yes, I did have an account there but I closed.
HIS HONOUR: You were under oath to tell me the truth.
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: And [Counsel] who appears for your wife is going to make some
further inquiries during the course of the day to get documents
from [the
bank].
THE INTERPRETER: She can do so.
HIS HONOUR: And if those – if documents are produced by [the bank] that
show that any of the answers you give me are not correct,
you will be charged
with perjury.
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: For now, you are charged with the offence of contempt of court in
that you have with full knowledge of the application
of [the wife] sought to
dispose of or conceal the funds the subject of those proceedings.
THE INTERPRETER: I hid them behind the seat of the car.
HIS HONOUR: If you could just interpret that, please, though,
Ms Interpreter.
THE INTERPRETER: I took them out to get a farm.
HIS HONOUR: Very well. Do you understand, [the husband], that you are
charged with a criminal offence?
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: Do you understand that you are charged with a criminal
offence?
THE INTERPRETER: I don’t understand.
HIS HONOUR: You – after you were served with [the wife’s]
application, you allege you have disposed of all of the money
that the
application sought to divide between you and [the wife].
THE INTERPRETER: No, it’s not true, I did not do it for that.
HIS HONOUR: And until the matter is dealt with to finality, which may take
some months, you will be held in custody in gaol.
THE INTERPRETER: I can’t do anything; I have said the truth, whatever
happens.
HIS HONOUR: Do you understand that you will very shortly be going to gaol, as
in today?
THE INTERPRETER: I can’t do anything; I have said the truth

His Honour then required the husband's friend, Mr B, to go from the back of the court into the witness box.

Then the bank was telephoned, and a bank officer, who was not sworn in, spoke to the court. The officer told the court that there had not been telephone banking, as appeared on the statements, but cash withdrawals, and it appeared that the wrong code had been inputted when describing the transactions on the statements.

His Honour then considered jailing the husband immediately, but put it off when a letter from the husband's GP stating that he had dementia was produced. The matter was then adjourned to another day. His Honour said:

I’m going to release [the husband] on condition that
he appear on the next occasion and that he present 120,000 bucks or he
goes to
gaol next time. I don’t believe for one second his story, or his
friend’s story about 200 grand in the back
of the car; not for one
second. I would slot him for perjury now, if somebody could produce a $20 note
that shows he was lying.
But I’m just unimpressed that he is served with
an application, and two working days later, banks the cheque and proceeds
to
withdraw it by telephone banking – whether he did it or somebody else
– but he must have given them the details for
telephone banking after 1
March because that’s when he set up the account, as it would appear, a new
customer of [the bank].
And the moment he is able to do that, within the space of eight working days
the money has gone; in just enough time for it to all
be gone before the first
return date. So that’s the course I will take. It’s just an issue
of how long. But he goes
to gaol next time unless he brings 120 grand in cash,
because until he can prove otherwise I’m not buying his story....

HIS HONOUR: Now, Ms Interpreter, can I ask you just to
interpret some very brief things. [The husband], we’re letting you go
home. But you need to be back here in two weeks’ time on 21 April. There
are a number of other things you need to do in the
meantime that [Ms L]
will explain to you. But the two important things you need to be conscious of
is that you need to go to [W]
Police Station every day to report so that I know
that you haven’t left. And you need to bring $120,000 with you to
court on 21 April or you will be going straight to gaol, not passing go,
not collecting
$200. Because I am not believing your story at all about the
money being taken from your car, and if you don’t have money here bring
your toiletries you won’t be leaving next time. I am deadly serious you
will be in gaol this
time in a fortnight if that money isn’t here.
Thank you. [Ms L], and to the rest of your team, thank you for the
assistance.(emphasis added)

Second appearance 21 April, 2011

His Honour
said (Transcript 21
April 2011, page 2, lines 38- 46):
HIS HONOUR:
No, no. If you say that has happened, I accept that from you. I did make very
clear to [the husband] today, though, that
he brings 120 grand or he brings his
toiletries because he starts his sentence today if the money is not here.
[MR H]: HE says he doesn’t have the money.
HIS HONOUR: Then I have already taken that evidence and made very clear to
him I don’t believe it. I have already convicted him. If he
doesn’t come up with the money, he starts his sentence today.
HIS
HONOUR: Well, if that’s so, he will have to deal with Conlan J about that,
because I dealt with it last time. It’s
a done deal. Does [the husband]
get a pension?..
HIS HONOUR: And [the husband]
will find himself entirely deprived of the balance of that account and I will be
garnisheeing his pension,
and he will be starting his sentence ...
HIS HONOUR: But as I said, [Mr
H], I need to stand the matter in the list. [The husband] is not to leave the
registry because I hear
what you say in relation to the findings that could or
should be made, but I have already made them. He has already been
convicted. He has already been sentenced. I suspended it on the
last occasion. The suspension ends today. I made very clear the 120 is
here, because I don’t believe he doesn’t have it.

I suppose, being blunt, I
don’t particularly want to see the Sunday Telegraph
with a banner headline
about the nasty Federal Magistrate who caused an elderly deaf man to get
beaten in jail, when it’s not achieving a purpose. If it achieved
a
purpose, well, he can cop the beating. But it’s not going to achieve
a purpose. So I think, certainly, that would be the course. But it’s an
issue, then,
of – I think, you wouldn’t have had the opportunity,
yet – I haven’t look at the file, but you – no,
you have,
sorry. You filed a response, [Mr H]. (Emphasis added)

As Chief Justice Bryant noted:

His
Honour was ultimately persuaded by Counsel for the husband that he should
dispense with the order requiring him to attend at the
police station every day.
Counsel for the wife indicated to his Honour that her client was sufficiently
protected by the injunctive
orders and a restraint on the husband from leaving
the country and did not require the husband to report to the police station.
His Honour’s response was (Transcript, 21 April 2011, page 12,
line 39):
HIS HONOUR: Certainly. Very well, and we can bury
that as well.

His
Honour then made an order dispensing with reporting to the police at all.

What
his Honour did with the contempt application itself is not clear as it is not
mentioned.

The bank

Federal Magistrate Harman joined the bank as a party. No application had been made to join the bank. No one from the bank was given the opportunity to repond to the application before it was heard.

What his Honour said speaks for itself:

One thing I would
propose doing, and I’m fully conscious they’ve had no notice of it,
but I don’t particularly
care about that, is join [the bank] because I
think that’s the best way I’m doing(sic) to get them here, and I
think
if I am incorrect in disbelieving [the husband], will give you the best
shot to protect [the husband’s] interests
- - -
... I know we haven’t given any notice to [the bank], although, we did,
in fact, have some person from [the bank] whose name
I can’t remember give
some evidence by telephone on the last occasion, which is how it came to be
that, in fact, we became
aware that each of the transaction descriptions on the
[bank’s] banking records was wrong. So I suppose to that extent,
that’s
probably the notice they’re getting. But I want to join them
as a party because – if they’re disgruntled by that,
well, they can
appeal. They can’t get a costs order against the court. They certainly
won’t be getting one against
the parties.
If I am incorrect in my suspicion as to the veracity of [the husband’s]
evidence about what happened with his money, then, that
will give you the best
shot to protect [the husband’s] position and seek orders against [the
bank] as to anything that has
happened that may have been fraudulent but not
involving [the husband]. And [Counsel for the wife], that will, if I’m
right
about that and there has potentially been some collusion or otherwise,
that will give your client the best shot of doing something
about it....
:
So it’s an issue of whether
we’re going to a conciliation conference, whether we’re simply
coming back to see what
[the bank] has to say for themselves, and I will make
sure, in joining them, that I express very clearly why because something that
is
not quite right has been going on at [the bank]. Seeing as they have control of
my money and my wife, I’m not particularly
excited about that....

I don’t want to, for the reasons I’ve already described,
[solicitor for the husband], put you to the difficulty and expense
of dragging
you in to Sydney, although, it probably suits [the bank]. But probably, the
more inconvenience we create for the (sic),
the better.

His Honour adjourned the proceedings to June, but noted these things first:

The [Bank] is joined as a party because:

the
material produced by the [bank] on subpoena purporting to be the proper business
records of the bank would appear to be either
inaccurate or fraudulent;

evidence
given when the matter was last before the Court would give rise to a suggestion
of collusion between one or more bank offers
(sic) and/or [the husband] or other
persons;

the
opening of the accounts and their operation relevant to these proceedings would
appear highly unusual and would appear to involve
substantial cash withdrawals
within a short period of time and would not have been reported to the
appropriate agency and would have
the affect to [the husband’s] knowledge
of frustrating the Wife’s application and subverting the Courts
jurisdiction.

The
evidence available in the mater (sic) to date would also suggest a lack of duty
of care by the bank towards [the husband] in that
he is elderly, suffers a
hearing difficulty, is suggested to be affect (sic) by dementia and the
transactions which had occurred
would appear to have been assisted or undertaken
by persons other than [the husband]; and

If
one or all of the above are ultimately found proven by the evidence in this case
the Court will consider making orders for compensation
or restitution against
the [bank].

Third appearance 11 June, 2011

When the matter next came before his Honour in June, the bank was represented. This exchange took place between his Honour and counsel for the bank:

HIS HONOUR: And if they
don’t, there’s nothing produced and there’s a subpoena
outstanding and I’m entitled
to arrest the managing director of [the bank]
right now because they have had three months to comply with the subpoena and
have chosen
not to, other than to produce documents which mislead the court.
And I’m not suggesting that’s deliberate but they do
and
they’ve got this man arrested and put in custody.
[MS B]: Your Honour, may I take umbrage and say [the bank] did not get
[the husband] arrested. As I understand, that was your Honour’s
bench warrant.
His Honour then did this:

I note that a subpoena addressed to the [bank] was previously served and made
returnable 7 April 2011, and with respect to that subpoena
(a) documents were
produced by the [bank]; (b) after the matter had been dealt with and interim
determinations made with respect
to the substantive proceedings, and following
cross-examination of the husband and another witness in his case, further
documents
were produced by the [bank], and an officer of that bank contacted to
give evidence by phone which suggested that each of the documents
that had been
produced by the bank to the court in purported compliance with the subpoena did
not accurately reflect the transactions
which had, in fact, occurred.
Next:
The material to be filed by the [bank] shall include and annexe copies of all
relevant documents, including statements, vouchers,
deposit and withdrawal
slips, internal memoranda or such other documents as would go to: (a) an
explanation of the discrepancies
between the various documents now produced, and
particularly noting that the documents initially produced suggested that most,
if
not all, of the transactions which had occurred had been conducted by
telephone banking, whereas it would now appear no such transaction
had ever
occurred, and further, that such transactions as had occurred largely involved
transfers of funds to a term deposit account
which it is also now suggested does
not, and has never, existed; (b) the apparent different signatures on each
withdrawal slip and
application for opening an account that has been produced to
the court; (c) an explanation as to the bank’s compliance or
otherwise
with financial reporting obligations regarding cash transactions in excess of
$10,000.
(Transcript, 14 June 2011, pages 13-14)
...
(9) I grant leave to each of the husband and the wife pursuant to
section 121 of the Family Law Actto make such disclosure of these
proceedings and the nature of same and allegations contained therein as they
consider appropriate,
and note that any such disclosure or invitation to any
media organisation to investigate issues relevant to these proceedings will
seek
to obtain information by way of interview or otherwise is (a) considered to be
in the public interest, and (b) shall not constitute
a breach of
section 121.

When his Honour made the publicity order, he did so without being asked to do so by anyone, and had not sought submissions from the bank. Counsel for the bank made the point plainly:

While these are matrimonial proceedings, the
bank
is nevertheless entitled to some protections and to many protections which exist
to all entities of proceedings, be they corporations
or private citizens.

Justices Finn and Strickland had this to say about the joinder:

It
was neither appropriate nor necessary for the Federal Magistrate to join the
bank at that point. However, it is apparent from what
the Federal Magistrate
said on 21 April 2011 that he had a collateral purpose in making the joinder
order. He was using it as a way
of getting the bank to appear before him and to
allow the wife to pursue a claim for “compensation or restitution”
against
the bank. Yet, it was unnecessary to join the bank to achieve these
purposes (if indeed they needed to be achieved). The bank could
have been
required to attend in the context of the alleged non-compliance with the
subpoena that had been issued, and if the wife
sought to make a claim against
the bank the rules permitted the wife to name the bank as a party to any such
proceedings, or to seek
leave to do so.

His
Honour did give “reasons” for the joinder, and they were set out as
notations to the order of 21 April 2011 as identified
in paragraph 117 above.
However, in our view, none of the matters referred to justify a joinder order as
opposed to an order in relation
to the subpoena that had already issued.
Indeed, as we will elaborate on later in these reasons, his reasons comprise
unjustified
assumptions on the part of the Federal Magistrate. They clearly
follow on from inappropriate comments made by the Federal Magistrate
during the
hearing on 21 April 2011 and which are revealed in the transcript from that
hearing set out in paragraphs 113 and 114
above.

There
is alsono question that the bank was not on notice of the proposed
joinder and it did not have the opportunity to either respond to the issues
raised by the Federal Magistrate or at the very least make submissions in
relation to the proposed joinder before the order was made.

In
most circumstances that would raise an issue as to whether there was a denial of
natural justice and/or procedural fairness, as
claimed by the bank....

The
only difficulty with this process that we can see is that it is quite apparent
from the transcript of the hearing before his Honour
on 21 April 2011 that his
Honour was not making an order for joinder with a view to giving the bank the
opportunity to attend on
the adjourned hearing date to object to the joinder.
His Honour was clearly intending that the bank attend to address the issues
that
his Honour considered arose from the evidence of the husband and his friend
Mr B, the documents produced pursuant to the subpoena,
and the
“evidence” given by Mr S. As referred to earlier his Honour was
using the joinder for a collateral purpose, and
that is demonstrated by Order 7
of his orders made that day. In our view, such an order was completely
unnecessary and inappropriate.

There
is also the question of the notations made to his Honour’s orders on
21 April 2011 and which we have set out above. In
Ground 8 it is suggested
that these are “findings” made by his Honour, and his Honour erred
in making them in circumstances
where the bank was not represented in Court that
day.

We
are not necessarily convinced that these notations can be described as
“findings”. They are expressed to be his Honour’s
reasons for
joining the bank, but we would accept that in these reasons his Honour makes a
number of assumptions from the evidence
he had heard and the documents he had
seen which may not be entirely justified. In any event we treat them as raising
issues that
needed to be addressed by the bank on the adjourned hearing. We
confirm though that we do not consider that they are reasons which
would justify
the joinder of the bank. Rather they comprise issues which should have been
dealt with entirely in the context of the
subpoena that had been
issued.

Their Honours concluded that another Federal Magistrate should hear the matter, noting this portion of transcript:

What I
understand is this, as a chronology: [The husband] came into the Richmond
branch as a new customer on 1 March and he deposited
$200,000 and $50 which was
a telephone banking fee of some kind – but $200,000. He opened that
account – first, should
I say, he opened two accounts, he opened something
called a savings account and a basic account. The savings account was the
account
into which the $200,000 was deposited. The basic account, as I
understand, is a very simple and low fee, if not no fee, account.
I understand
in the vernacular, it’s the sort of account used by pensioners and people
on very low incomes because it attracts
no fees. The money was deposited; the
account was opened in his name; he was the sole signatory and the bank records
indicate
that.
Then on a number of eight transactions, that money was withdrawn and, as
[Counsel for the wife] has pointed out, it was, as the records
indicate, over a
period of about two weeks in various amounts from $10,000 being the lowest
amount to $40,000 being the highest of
the amounts – that was a one-off
– there was one $40,000 withdrawal. Of itself, the bank, I anticipate
would say if
– giving evidence, would say there was nothing unusual about
that; he is a customer of the bank, he is a sole signatory, he
comes in and he
withdraws his money and goes away, it’s cash and that’s the end of
it.
HIS HONOUR: Well, can I stop and say there’s a few things about it.
Firstly, the bank records suggest that they weren’t
cash withdrawals, they
were transfers to other accounts. So clearly the bank record is wrong.
[MS B]: I will come to that.
HIS HONOUR: I want to know whether it’s deliberately wrong, in the
sense that there’s some degree of collusion, because
evidence had also
been given by [the husband’s] friend and flatmate that he had introduced
him to this person who he knew well,
who had helped him the past, and I want to
know ether the records are mischievously wrong or there is just some horrible
accident,
either of which is ultimately going to be referred to the Banking
Ombudsman to look at.
[MS B]: Your Honour, from – I was just about to come to that.
HIS HONOUR: Second, and more serious – or two further concerns –
one which probably isn’t this court’s business
but there is no
evidence at all to suggest, and it wouldn’t have been the case based on
what they are shown as in the record
of [the bank], proper accounting in
relation to the reporting of those transactions – all being withdrawals
and cash of over
$10,000 – which is a serious breach of the law by [the
bank] and I’m not the Family Court, I’m the Federal
Magistrate’s
Court, so I have power to deal with those issues and propose
to.
Thirdly, and the most important, is having cited the various transaction
slips that have been produced, which wouldn’t have
been required if they
were telephone banking transactions and transfers to accounts which it appears,
from what we were told from
the evidence of the banking officer, don’t
actually exist, the signatures – not one of them actually looks like the
one
that preceded it. There are a variety of signatures – I’m no
handwriting expert, but they sure don’t all look
like the same
person’s signature.
So I have a real concern that there is either some collusion or a very grave
interference with [the husband’s] rights, which
had impacted on [the
wife’s] and [Counsel for the wife] will certainly be given leave today, if
she wants to, to amend her
application to seek orders against [the bank] to
compensate here, because [the husband] gave evidence he was fully aware of these
proceedings, he had been served with the documents and, having been served with
them and in total frustration, deliberately or otherwise
and with or without
collusion by employees of [the bank], has entirely frustrated her claim.
[MS B]: All right. Well, your Honour, if I can take it through in this
way. There are eight withdrawals. Four of them - - -
HIS HONOUR: But why hasn’t someone put this in affidavit form because
that’s how we work.
[MS B]: Well, your Honour, because [the bank’s] position, primary
position is that it has no business being here because no
party, at this stage,
has sought an order against it and it’s primary application is that it be
- - -
(Transcript, 14 June 2011, pages 4-5)

The
Federal Magistrate can then be seen as inviting Counsel for the wife to make an
application for an order against the bank by saying:

Then give me
one moment. [Counsel for the wife], do you want to seek an order against [the
bank]?
(Transcript, 14 June 2011, page 5)

Counsel
for the wife responded:

I do, your Honour. I want to reserve a
right at least to amend the application that should [the bank] – should
your Honour make
a finding that there has been collusion or whatever, my
client would reserve her right to amend the application accordingly to seek
some
money against – some damages against [the bank] effectively.
(Transcript, 14 June 2011, pages 5-6)

The
following exchange then occurred between the Federal Magistrate and Counsel for
the bank:

[MS B]: Well, your Honour, if that’s the case,
then so be it but we should put the cart before the horse; that is to say, the
application against [the bank] should be made. The evidence in support of that
application should be put before [the bank] an the
court of course and then [the
bank] can respond in the light of the application made against it and the
evidence as opposed - - -
HIS HONOUR: Why aren’t I entitled to deal with this on the basis [the
bank] is in receipt of a subpoena which, on the face of
it, it has not complied
with, because the documents that are provided are entirely at odds with the oral
evidence of an officer from
[the bank] who says those documents do not reflect
whatsoever what occurred. So there has been no compliance with the
subpoena.
[MS B]: Your Honour, I don’t understand, I’m not in a
position to respond to your Honour. I didn’t hear what the
officer
of [the bank] said. So far as my instructions go, the bank has answered the
subpoena.
HIS HONOUR: They provided documents purporting to be in answer but I’m
then told by the very officer who produced them who then
emailed through a
number of other documents which showed that those which had been provided to the
court are entirely false. Whether
maliciously so or otherwise, I really
don’t care. They were simply not a proper reflection and could not be a
business record
because it’s conceded by he who produced them that they
are not a proper reflection of the transactions that occurred, therefore
there
has been no compliance with the subpoena. And I want an explanation in writing
and on oath by somebody about it because next
time we come back, I can assure
you, those seats are all going to be full of media. [The bank] has done
something here, whether
negligent or malicious, but something has happened
that’s removed $200,000 from this man’s hands and removed, as a
consequence,
$200,000 from [the wife’s] hands.
[MS B]: Well, your Honour, may I say that your Honour may have
prejudged the issue in those circumstances if that is your Honour’s
attitude.
HIS HONOUR: Not at all. Your bank officer made clear that the documents that
were produced purporting to be business records of [the
bank] do not reflect at
all the reality of what occurred. I am very concerned about that because I have
jurisdiction much greater
than a Family Court judge. I can deal with financial
transaction reporting. I can make a finding right now that [the bank] has
breached the law in terms of financial transacting by allowing 10 to 40 thousand
cash withdrawals without having reported them.
There are consequences for that.
I have a power under the Corporations Act to deal with it.
[MS B]: Your Honour, I trust you are not going to make that order
today.
HIS HONOUR: Not today. I’m going to give [the bank] the chance to
file proper sworn evidence about it.
(Transcript, 14 June 2011, pages 6-7)

Then
after he had questioned the solicitor for the husband as to whether the husband
would be seeking relief against the bank, which
was a question that the
solicitor was not in a position to answer, his Honour suggested that the bank
had not fully complied with
the subpoena in the following
exchange:

HIS HONOUR: And if they don’t, there’s nothing
produced and there’s a subpoena outstanding and I’m entitled
to
arrest the managing director of [the bank] right now because they have had three
months to comply with the subpoena and have chosen
not to, other than to produce
documents which mislead the court. And I’m not suggesting that’s
deliberate but they do
and they’ve got this man arrested and put in
custody.
[MS B]: Your Honour, may I take umbrage and say [the bank] did not get
[the husband] arrested. As I understand, that was your Honour’s
bench warrant.
HIS HONOUR: They did because I made a finding based on accepting the accuracy
and validity of the documents produced as business records
by [the bank] and
accurate faithful representations of the transactions which had occurred to find
that [the husband’s] evidence
was fanciful and not to be accepted and
accordingly he had lied under oath and he was charged with contempt and
arrested. If [the
bank] had thought to produce the documents which, at my
instigation, not [the bank’s], four hours later were produced, and
the
concession made that the documents we have sent are completely inaccurate, he
wouldn’t have been arrested. I detained
him, I deprived him, in terms of
talking about rights of private citizens, of his right of liberty. He was
retained in custody for
four hours until that happened caused by the document
[the bank] produced which was clearly false. I don’t say false to suggest
meaningfully so but it was false and I would have thought it’s a matter of
real concern to [the bank] to have produced something
that tells me how the hell
that happened.
[MS B]: Your Honour, if I can only say again, and I would say this to
protect my client’s interests, two things, firstly my
client needs to have
some considered – some time to consider the evidence brought against it.
It has not had the opportunity
to read the transcript and all of our so to speak
ducks are not in a row. That needs to be done. It’s of no use to the
court
otherwise and for evidence to be put on which is in a sworn form upon
which your Honour can rely, draw inferences and the like and
I would
secondly simply reiterate, as I must in order to discharge my duty to my client,
in saying [the bank] did not cause [the
husband] to be arrested.
Your Honour, there is a chain of reasoning certainly in
your Honour’s decision to issue an arrest
warrant to [the husband]
but I would simply say, to protect my client’s interests, [the bank] did
not cause that to occur.
HIS HONOUR: I didn’t issue an arrest warrant, I convicted him and
imprisoned him.
(Transcript, 14 June 2011, pages 8-9)

Later
on the same day the following further exchanges occurred between the Federal
Magistrate and Counsel for the bank:

[MS B]: Well,
your Honour, because your Honour has no evidence of that before you as
yet. The bank needs to put on evidence - - -
HIS HONOUR: But I do - - -
[MS B]: - - - as to what has – may I
- - -
HIS HONOUR: - - - because the banking officer to whom I spoke
emailed to my associate, and they were admitted as exhibits the proceedings,
the
withdrawal vouchers which then made very clear that they had never been a
telephone banking transfer to a term deposit that never
existed.
[MS B]: Well, your Honour - - -
HIS HONOUR: They were cash withdrawals over the counter.
[MS B]: Your Honour is going one step further, if I may say, by this:
it is no longer a case of [the bank] not answering or answering,
as the case may
be, a subpoena. Your Honour is now making or moving towards making orders
and findings against [the bank]. But circumstances
in which those earlier
discussions with your Honour – and of course, I am flying in the
dark, your Honour, because I wasn’t
here and that is the very point.
[The bank] was not represented in those proceedings. It was answering a
subpoena. It was assisting
the court so far as I understand. Your Honour
is, may I say, and I don’t with to be in any way disrespectful, but at
risk
of prejudging [the bank]. Let [the bank] put on - - -
HIS HONOUR: No, I am not going to make any order about
- - -
[MS B]: If I may - - -
HIS HONOUR: - - - the apparent inconsistencies. I am going to
refer them to the Attorney-General - - -
[MS B]: Well - - -
HIS HONOUR: - - - to be appropriately investigated
- - -
[MS B]: Certainly, your Honour has all those - - -
HIS HONOUR: - - - and if he considers it appropriate,
prosecute it.
[MS B]: Your Honour has many powers and I wouldn’t suggest for one
moment to detract from them. But [the bank] needs to understand
the case that
is being brought against it, needs to be given the opportunity to put on
evidence to explain the situation. It may
very well be, your Honour
- - -
HIS HONOUR: You have had since 21 April.
[MS B]: - - - that once evidence has been placed before the
court and [the bank] has been properly cross-examined and so forth on
that
evidence, that it may be that the concerns your Honour has are not nearly
either as – that may not be founded at all or
they may not nearly be as
serious as your Honour suggests, in which case, the making of this into a
Today Tonight story by allowing
the parties to go to the media only prejudices,
and may I say, potentially degrades the integrity of the proceedings because at
this
stage, all of this is untested; and at this stage, it is out of context;
and prior to now, [the bank] has not been represented
in the proceedings.
HIS HONOUR: But what I do have a context of are two sets of documents
provided on the same day which cannot both possibly stand together.
[MS B]: Well, that may be - - -
HIS HONOUR: There is an issue about the integrity not of these proceedings,
but of the banking process.
[MS B]: But your Honour, that is a matter of evidence.
HIS HONOUR: I am entitled to receive a business record from [the bank] that I
can rely upon, and on the first instance did in sentencing
to a period of
imprisonment an elderly gentleman who it subsequently transpires may or may not
have dementia.
[MS B]: Well, your Honour, that may be – look, all of that may be
so or not so.
HIS HONOUR: To then be provided with a document on the same day that says,
“Sorry, that is not right.”
[MS B]: Well, your Honour, it may be that there was human error. These
things do exist in a big corporation - - -
HIS HONOUR: They do.
[MS B]: - - - as much as they do in any household or it may
have been something else.
HIS HONOUR: The problem is I can understand if it was a transaction.
[MS B]: But we need to find out. These are matters of evidence. I’m
sorry, your Honour?
HIS HONOUR: If it was a transaction, I would understand. But it is every
transaction.
[MS B]: Well, your Honour, I take issue with that and I would say, on
the evidence, it is not every transaction.
HIS HONOUR: All right.
[MS B]: But I am not going to give evidence from the bar table because I can
feel - - -
HIS HONOUR: It is the majority of them. Telephone banking transfers to a
term deposit in [the husband’s] name. He has never
used telephone
banking, he doesn’t have the facility on his account and he doesn’t
have a term deposit.
[MS B]: Well, your Honour, I take issue with two of the – well, in
fact, I take issue with two of those things and I agree with
the third. But
those are matters of evidence.
HIS HONOUR: Good. Well, the bank should have put it on before today.
Didn’t need me to make an order about it.
[MS B]: Well, your Honour, before today, there has been no application
against the bank. The bank has nothing to answer as yet.
HIS HONOUR: But there is a subpoena which the bank has not complied with. We
have visited that issue. The bank cannot produce documents
which they then
concede are not an accurate business record and say they had complied.
[MS B]: Your Honour, until an application is made against the bank, the
bank has nothing to put evidence on about - - -
HIS HONOUR: They have an obligation to comply with a subpoena or explain
their inability to do so. They haven’t. As I said,
I am happy to arrest
the director - - -
[MS B]: Very well, your Honour. I hope you won’t be doing that.
HIS HONOUR: - - - because they haven’t complied.
[MS B]: But perhaps if we can just revert to a timetable for filing
evidence.
HIS HONOUR: We have got that.
[MS B]: And the matters can be ventilated.
HIS HONOUR: We have got that.
[MS B]: Thank you.
HIS HONOUR: But we are getting to the bottom in these proceedings of what has
gone wrong in this case and I am not trying to prejudge
or suggest it is
necessarily collusive. I don’t know. But I am dismayed that a bank
– and the bank that I bank with
– can produce records that are that
inaccurate, and then expect that this court is not going to pay attention ...(emphasis added)

The contempt charge

Chief Justice Bryant was just as critical, but on this point. Her Honour stated:

In light of these well established statements of principle and the Rules of the
Federal Magistrates Court a fair hearing of the charge
of contempt in the face
of the Court requires the following steps to be taken:

First set out
the charge which can be done orally or in writing. However it is essential that
the alleged contemnor understands the
charge that is being laid.

Consider whether
it is necessary to take the exceptional step of proceeding to hear the charge or
whether the charge should then be
adjourned so it can be heard before another
judicial officer.

To afford the
alleged contemnor the opportunity to consider the charge and to adjourn for that
purpose if necessary.

Togive
the alleged contemnor the opportunity to state whether he or she pleads guilty
or not guilty to the charge.

To determine
whether the charge requires the alleged contemnor to be held in custody and to
hear submissions on the issue.

In the event the
alleged contemnor pleads not guilty to give him/her the opportunity to present
evidence and make submissions relevant
to the defence and determination of the
charge.

Having heard the
defence to determine the charge beyond reasonable doubt and if established
convict the alleged contemnor.

To make an order
for punishment if convicted, or discharge if not.

If sentencing,
to have regard to relevant sentencing principles.

To give reasons
for the decision to convict and sentence.

It
is apparent from the transcript that his Honour failed to comply in almost all
respects with the Federal Magistrates Court Rules and with the well established
authorities in relation to the manner in which contempt in the face of the Court
is to be conducted.
However to explain what occurred it is necessary to
consider in some detail how the matter unfolded before his
Honour.

Her Honour then noted as to the appearance in June, commencing with a passage of transcript with the bank's counsel:

[the bank] did not
cause [the husband]
to be arrested. Your Honour, there is a chain of reasoning certainly in
your Honour’s decision to issue
an arrest warrant to [the husband]
but I would simply say, to protect my client’s interests, [the bank] did
not cause that
to occur.
HIS HONOUR: I didn’t issue an arrest warrant, I convicted him and
imprisoned him. (My emphasis)

That
statement by his Honour is startling because as I have previously observed, it
is obvious no proper procedure to arrive at a
conviction and imprisonment had
taken place. However it accords with the order that his Honour made, which had
the character of
punishment for contempt rather than a remand until the contempt
could be heard. If that is so, it needs no further comment to demonstrate
the
clear and unambiguous failure to comply with the Federal Magistrates Court
Rules, established authority and basic tenets of procedural fairness. The
admission from his Honour that he had convicted and imprisoned
the husband
reveals that he failed:

to allow the
husband to plead to the charge;

to afford the
husband an opportunity to get advice or be heard;

to allow the
husband to call evidence in relation to the charge;

to make findings
on the evidence to determine whether the charge was proven beyond reasonable
doubt;

to make a formal
conviction;

to properly
sentence;

to give reasons.

Judges
have significant powers which must be exercised judicially. In particular, the
deprivation of the liberty of an individual
is something not to be treated
lightly by ignoring Rules and procedural fairness or by being used as a weapon
with which to threaten
a party as a means of seeking to achieve an end.

I
am conscious that no appeal by the husband was brought against his asserted
conviction (and that his capacity to conduct proceedings
still remains
uncertain) and that there is no contradicter to support the manner in which the
Federal Magistrate conducted the proceedings.
Accepting those caveats however
the transcript itself makes clear the flaws in the process adopted by the
Federal Magistrate.

The
wider interests of public confidence in the administration of justice and
expectation that judicial officers will not act arbitrarily,
has caused me to
take the unusual step of commenting on the process adopted by his Honour in
relation to the contempt charge against
the husband, absent an appeal against
his orders.

The Full Court of the Family Court has ruled on the scope of counselling privilege as set out in sections 10D and 10E of the Family Law Act. In broad terms, these provisions state that what is said in the type of counselling that is covered (broadly counselling in approved marriage guidance organisations) remains confidential and cannot be used in court proceedings.

In the recent case of Uniting Care and Harkess, the Uniting Church counselling arm argued that a subpoena should be set aside. The Church was successful.

Section 10D

Most of the case concerned sections 10D and 10E. Section 10D provided that what was said in counselling was confidential and could not be used in court, unless the parties taking part in counselling consent to the release of the information, in which case the counsellor "may" release the information. Section 10D(3) of the Family Law Act provides:

(3) A family counsellor may disclose a communication if consent to the
disclosure is given by:
(a) if the person who made the communication is 18 or over--that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part
VII) for the child; or
(ii) a court.(emphasis added)

The difficulty for the Uniting Church was that both parties consented to the release of the information. The Uniting Church argued that "may" meant "may" not "must": in other words even if both parties agreed to the release of information, then there was still a discretion on the part of the counsellor to release information. The Church was successful.

The Full Court found that "may" meant "may", stating:

Section
10D of the Act creates and defines the privilege attaching to communications
made to a family counsellor in the conduct of
family counselling, and
articulates the circumstances in which that privilege may, or must be waived.
Given the absence of legislative
constraint upon the persons or entities to
whom, or to which disclosed communications may be published, failure to observe
the legislative
imperatives of s 10D could have quite unintended
consequences, and potentially adverse implications for the welfare of children
referred
to in, or connected with such communications.

The Federal Magistrate, in making the order for the production of documents, sought to rely on section 10D(3)(b). The Full Court disapproved:

To
the extent that the learned Federal Magistrate purported to rely upon
s 10D(3)(b), with respect to him, the facts of this case
reveal that it
could not be enlivened. The reference to “a court” in s 10D(3)
refers only to communications made by “a
child under 18”, and not to
the parties to the marriage in this case. Section 10D(3)(a) does not refer to,
or invoke the intervention
of “a court”. That cannot have been
inadvertent. If the legislative intention had been that a Court could override
the
wishes of the adults falling within s 10D(3)(a), or the family
counsellor, it would have so provided in the legislation.(emphasis added)

Section 69ZX

This section of the Family Law Act allows the court to seek the production of documents. It was argued that this section overrode section 10D and therefore required the production of the documents. The Full Court rejected that approach:

The
Court is not persuaded that s 69ZX purports to empower the Court to require the
production of documents in the circumstances of
this case. If it does, then it
could not in the Court’s view override the clear expressed terms of s 10D
of the Act.

The
Court is not persuaded that the provisions of s 69ZX are inconsistent and
irreconcilable with the provisions of s 10D. As their
terms make clear, the
sections are directed to quite different issues. Section 69ZX suggests how
powers created by other provisions
of Part VII might be exercised, rather than
conferring powers. However, to the extent that the provisions are, or may be,
inconsistent
and/or irreconcilable, the presumption that the general provisions
of s 69ZX should “give way” to the specific provisions
of s 10D
should be applied.

Section 10E

This section is familiar to those like me who were familiar with the old section 19N- it in effect reenacts that section. The Full Court referred to the explanatory memorandum, which clearly refers to the effect of section 10E in also applying to State courts:

Currently,
the admissibility into evidence of communications and admissions made in family
and child counselling and family and child
mediation, or in a professional
consultation pursuant to a referral by a family and child counsellor or family
and child mediator,
is addressed by section 19N of the Act.

Section
10E largely recreates section 19N, to the extent that that section relates to
family counsellors. Subsection 10E(1) provides
that a communication made in
family counselling is not admissible in any court or proceedings, in any
jurisdiction.

Subsection
10E(1) also provides that a communication made when a professional consultation
is being carried out on referral from a
family counsellor is also inadmissible
in any court or proceedings, in any jurisdiction. In order to ensure that
professionals to
whom family counsellors make referrals are aware of the
inadmissible status of communications made to them, subsection 10E(4) requires
the family counsellor to inform them of this fact when making a referral.(emphasis added)

The Full Court accepted that the scope of section 10E applied to "all courts":

The
terms of ss 10E(1) and (2) are instructive. It is clear that, unless, and even
then only in the circumstances there referred to,
admissions or disclosures were
made in the terms referred to in s 10E(2)(a) or (b), there is an
absolute prohibition, in all courts,
on the admissibility of evidence of
“anything said, or any admission made, by or in the company of”, in
this case, a
family counsellor conducting family counselling.(emphasis added)

The Full Court of the Family Court, in a case called Nadkarni and Nadkarni, has recently ordered that a matter not be before Federal Magistrate Harman, due to perceptions of bias, and set out guidelines for judges as to disqualification.

The wife successfully appealed the refusal by the Federal Magistrate to disqualify himself. His Honour stated, in refusing the application:

I
do make clear that there was most certainly a personal and
intimate relationship
between [the wife’s] lawyer and myself, as well as the business
relationship. That terminated in 2006.
That is a matter, it would seem, of
great interest to the legal profession of Parramatta ...

It seems surprising that Federal Magistrate Harman did not excuse himself in light of the history:

There had
been a great deal of acrimony between Federal Magistrate Harman and the
wife’s solicitor following the wife’s
solicitor leaving the legal
practice in which they had both worked;

Federal
Magistrate Harman had complained about the wife’s solicitor to the Legal Services Commission and the NSW Law Society

In 2009, about a year prior to his appointment,
Federal Magistrate Harman forwarded an "extraordinary" email denigrating the wife's solicitor to 17
legal practitioners and alleging an extra-marital affair between them;

In 2010 Federal Magistrate Harman made certain remarks in another matter
about the wife’s solicitor upon the litigant
advising the court that she
intended to instruct the wife’s solicitor;

In a separate matter in 2010 Federal
Magistrate Harman had indicated that he would refer any
practitioner who renewed an application for disqualification for disciplinary
investigation;

In
November 2010 his Honour “rushed” to deliver an ex-tempore judgment
in circumstances where the matter was not
listed for hearing and did not permit
the parties to participate in the hearing.

The Full Court stated:

This is one of the extreme cases where, as a result of the circumstances of the
association
between the Federal Magistrate and the wife’ssolicitor, the Federal Magistrate might not bring an impartial and
unprejudiced mind to the resolution of the question he is required
to decide.

We
would add that once it is accepted that a subsisting marriage, or other ongoing
intimate relationship or association between a
judicial officer and a lawyer is
a disqualifying factor, it must also be accepted that once a marriage or similar
relationship or
association has broken down, that disqualifying factor must
remain, at least for a reasonable period. This must be so because of
the
acrimony that so often follows such a breakdown, as a lay observer would well
understand.

What
is a reasonable period for disqualification following the cessation of an
intimate relationship will be determined on a case
by case basis and having
regard to the perceptions of the hypothetical lay observer. In this case the
uncomplimentary email sent
by the Federal Magistrate only 15 months earlier
clearly fell within the time-frame in which a relationship, albeit one of
hostility,
not closeness, existed.

The mother had form for abduction. In 2008, after 6 years of litigation, the mother and father agreed to orders that split the child's care 9 days/5days in favour of the father. Within a month of agreeding to those orders, the mother abducted the son from school. A recovery order was made, and some months later the mother and son were found by police in Melbourne. Orders were made to prevent the mother from approaching the school, removing the chil from his school, or from taking the child from the father's care.The mother was not charged with any offence from this first abduction.

For 11 months after the child was returned to the father's care, the mother had no contact with her son; until one day in November 2009 when she came to her son's school at morning tea, took him and then hid with him in Adelaide. Police found the son hiding in the shower cubicle. Both he and the mother's hair had been bleached, presumably to make it easier to hide.

This time around, the WA Commissioner of Police charged the mother with contempt, for approaching the school, removing the son from school, and for removing the child out of the father's care.

After several adjournments, the trial got underway. The trial judge, Justice Crisford, found that the mother, who claimed that she was taking her son to protect him from abuse, did not have a reasonable excuse, and that therefore the mother was guilty of the offences. Justice Crisford sentenced the mother to 4 months gaol for the approaching and removal from school, and 6 months gaol for removal from the father's care.

The mother unsuccessfully appealed the sentence, from what the Full Court of the Family Court stated was a "careful and detailed judgment". The Full Court cited this passage from the trial judge's judgment as to why gaol was appropriate:

...It is my view that the mother
must be deterred from any temptation to reoffend. This is addressed to the
mother personally, but
it is also addressed to the community at large and people
who may consider acting in this same manner. The orders of this Court
are
orders which affect children. They are orders that are made with the best
interests of children in mind. The consent orders
were changed after the mother
removed the child on the first occasion.

There is no doubt that the orders made by the Court and which have been
breached here were made by the Court on the basis that it
was best for the child
due to the circumstances of the earlier abduction that the child live with the
mother [sic] and that the mother
not be presented with any other opportunity to
remove the child. Those orders, as I have said, were made by this Court in the
best
interests of the child and that is something the community expects from
this Court and it is something that this Court must uphold.(emphasis added)

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.